The McDougal Pardon: If you knew Susan like he knows Susan

National Review, Feb 19, 2001 by Byron York

The way Hickman Ewing sees it, there's a certain circularity in Bill Clinton's decision to pardon Susan McDougal, the ex-president's old partner in the Whitewater land deal. After being convicted of four Whitewater felonies, McDougal was held in contempt by Judge Susan Webber Wright for refusing to testify about Clinton's role in the affair. A few years later, Clinton himself was held in contempt by Judge Wright for lying under oath in the Paula Jones lawsuit. "So what happened," says Ewing, a longtime prosecutor in the independent counsel's office, "is a person who was found in contempt pardoned another person who was found in contempt by the same judge for refusing to answer questions about the person who pardoned her." In the legal Latin, Ewing explains, "a contemnor pardoned a fellow contemnor."

Ewing's objections aside, public reaction to the McDougal pardon was surprisingly muted. Clinton's critics-and many of his supporters-were far more upset by another last-minute presidential pardon, the one given to fugitive tax-evader Marc Rich, whose ex-wife had showered the Clintons with campaign contributions and personal gifts. But which case was more troubling? Rich appeared to purchase his pardon with $1.1 million in soft money, plus two coffee tables and two chairs. McDougal paid a price far more dear: She spent a year and a half in jail rather than tell prosecutors what she knew about Clinton's past. In the final reckoning, she may have done more damage to the administration of justice-with the president's support-than Marc Rich ever contemplated.

"I'd call it pardon psychosis, like waiting for your kid to be born," says Mark Geragos, McDougal's lawyer, describing the tension he and his client felt in the weeks leading up to the pardon. Unlike Rich, who mounted a years-long crusade for a pardon, McDougal had always insisted she didn't want one. But in early December, she changed her mind, a development Geragos attributes to "a woman's prerogative." With that, her lawyer began a last-minute campaign to win clemency. "I made calls, I wrote letters, I had other people write letters," Geragos recalls, although he refuses to say who wrote those letters or otherwise joined him in the pardon effort.

For all his work, one thing Geragos didn't do was go through the usual procedure of notifying the Justice Department of the pardon request. Instead, he went straight to the White House, where the president also disregarded normal practice by choosing not to seek input from prosecutors who handled the case. For McDougal, that would have been the office of independent counsel, hardly on chummy terms with the Clinton White House. "We were not consulted," Ewing says dryly.

Had such a consultation taken place, the independent counsel might easily have made a detailed and compelling argument against a pardon. McDougal, they could have pointed out, has never admitted any wrongdoing, and has instead engaged in years of fighting prosecution, refusing to cooperate, and denouncing law enforcement. Her pattern of behavior began in 1995, when she was charged with Whitewater felonies that included mail fraud, misapplication of funds, making false entries in a Small Business Administration report, and making false statements. "I am not going to testify against anybody," McDougal told reporters after pleading not guilty. "They can forget it."

Her defiance began a long, running battle with independent counsel Kenneth Starr's prosecutors. With virtually airtight evidence of McDougal's guilt, Starr's lawyers believed she might change her mind if faced with a guilty verdict and time in prison. "The whole point of that prosecution, aside from prosecuting the underlying offense, was to obtain new witnesses," recalls Jackie Bennett, the former deputy independent counsel. "That's the way it worked with [McDougal's late ex-husband] James McDougal. People cut their deals." In May 1996, a federal jury convicted Susan McDougal on four felony counts, and in August, she was sentenced to two years in prison.

But she still wasn't talking, although she hinted broadly that she might if offered the right deal. On September 3, Judge Wright ordered McDougal to appear before the grand jury. Wright gave McDougal complete immunity for any testimony she might give; the only charges she might face would be for perjury, if she lied to the grand jury, or for contempt, if she refused to testify.

Which is precisely what she did. McDougal insisted that she be allowed to read a statement before answering any questions. When prosecutors refused, she fell silent. When they asked whether Bill Clinton testified truthfully at her trial, she said, "I need to read my statement." Judge Wright gave McDougal a few days to reconsider and then ordered her jailed for contempt. Surely that would bring her around.

It didn't. And McDougal's resolve to stay silent was no doubt strengthened just a few weeks later, when Bill Clinton appeared on The NewsHour with Jim Lehrer. "Susan McDougal told a federal judge in Little Rock the other day the reason she was refusing to testify before a grand jury is she believed Kenneth Starr, the independent counsel, 'was out to get the Clintons,'" Lehrer said to the president. "Do you personally believe that's what this is all about, to get you and Mrs. Clinton?"